Is Blocking Merrick Garland the Latest Act of Republican Self-Destruction?

Judge Merrick Garland arrives at the White House prior being announced by U.S. President Barack Obama as his nominee to the U.S. Supreme Court, in Washington, D.C., on March 16. Reuters

Donald Trump piled up delegates in Republican primary victories across the country last night, much to the consternation of top party leaders. About 12 hours later, GOP senators vowed they would not consider today's nomination by President Obama of Judge Merrick Garland for the Supreme Court, much to the delight of some top Democratic leaders.

The GOP leadership doesn't see that stiff-arming Garland—after proclaiming they would oppose anyone Obama put forward—is a continuation of the long series of actions that unleashed the Trumpism they so fear. With the party already in disarray over Trump's ascendancy, blocking this Supreme Court nomination will increase the chances that Republicans will be toast come November.

Americans are not fans of the unprecedented or the unfair. That's why so many of the hardball tactics of the Republicans over the past few decades—government shutdowns, impeachment proceedings relating to President Clinton's marital infidelity and the like—have backfired on conservatives. Yes, declaring a new rule that no president (be real—no Democratic president) should have a Supreme Court nominee considered in an election year may play well with the rabid Tea Party types who deem anything that impedes Obama fair. That, in turn, empowers them within the party, the party they have driven into Trump's hands. But this idea is death for the independents the Republicans must win over for electoral victory.

Look at the polls on this issue before there was a nominee. Rasmussen Reports—considered one of the more conservative-leaning polling groups—found that 53 percent of all voters thought the Republicans should not reject or refuse to consider an Obama nominee for the high court. Most important, while 69 percent of Republican voters thought stopping any Obama nominee was the right thing to do, the majority of independents disagreed.

Polls from groups independent of either party show the divide is even worse. A NBC/Wall Street Journal poll found that 55 percent of registered voters opposed the Republican strategy, with 4 out of 5 in that group saying they "strongly disapproved." And only 27 percent of independents support the GOP position.

In what has become their usual fashion, Republicans have created an information bubble that blocks out these unpleasant numbers. Last week, Senator John Cornyn (R-Texas) sent out a poll to his fellow conservative senators that he claimed showed Americans wanted the Supreme Court seat vacated by the death of Justice Antonin Scalia to be left unfilled until the next president is elected. But the poll didn't ask that question. Instead, 54 percent of the respondents expressed concern that Obama would nominate a liberal judge; Garland is renowned as a moderate. The poll is meaningless.

The big question in all of this is, why did the Republicans declare before a nominee was put forward that they would oppose anyone? Are they really that dumb strategically? Yes, they got a few weeks of cheers from the Tea Party types. But why not just wait until there was a nominee, then break out the fainting couch by pretending no one could have ever imagined Obama would nominate so-and-so? That, at least, could have been portrayed as being a typical process in a constitutional government, not a declaration of some brand-new "not in an election year" standard clearly made up for pure politics.

By jumping the gun in their opposition, the Republicans will have to constantly repeat their line for the next 237 days that, because it is an election year, the people should have a voice in naming the next justice for the court. That's all they've got. Democrats are then set up for a rat-a-tat-tat of responses:

  • the move is unprecedented;
  • the people already had a voice when they re-elected Obama;
  • presidents have had nominees confirmed in election years throughout American history;
  • the Republicans are refusing to do their job;
  • they are sacrificing government to politics;
  • they are crippling the court through at least 2017;
  • they are continuing their attempts to block Obama's judicial selections with laughable excuses (such as when they fought to shrink the size of a major federal appeals court by suddenly declaring it was too big after a vacancy opened up);
  • they sacrifice government to politics, and cannot be trusted.

The political attack ads against every Republican in a close Senate race this year almost write themselves. The news stories will be relentless, with reporters asking uncomfortable questions like, "What day in a president's last term should no more nominees be considered?" and "Why did the Republican National Committee start fundraising off of the idea of blocking any nominee even before Obama named one?" The GOP will be forced, again and again, to mutter its feeble justification for what will become increasingly evident was nothing more than a naked power grab.

And this gift to the Democrats will likely keep on giving. If Trump wins the nomination, expect to see hundreds of political ads showing the Republican standard-bearer insulting women, calling for blocking all Muslims from coming to the United States and talking about his penis, followed by the tagline, "Is this who you want to select the next Supreme Court justice?" Republicans have plans to help their at-risk Senators distance themselves from Trump, but if those candidates are simultaneously arguing that the next president should select the new Supreme Court justice, they are tying themselves directly to the man that party leaders have already called a cancer, a buffoon and dangerous.

The Senate electoral battle was already going to be tough for Republicans. They have to defend 24 GOP-held seats, compared to just 10 for the Democrats, and several of those Republican incumbent are in states Obama won in both of the last two elections. Democrats have to pick up only four seats to take over the Senate (five if there is a Republican president).

The fact that Obama selected Garland, a widely respected moderate jurist who has received praise from politicians in both parties, only serves to worsen the chances of Republicans keeping control of the Senate. It was easier to say, "We will not consider any nominee" than "We will not consider this guy." Republicans will do their best to convince voters who have never heard of Garland that he is a wild-eyed socialist who hates America, but that will be a difficult position to support. After all, even conservative Republican Senator Orrin Hatch of Utah urged Obama to select Garland for the Supreme Court when a previous vacancy opened up. In fact, the selection of Garland is so obviously appropriate and—in normal times—would have likely been cheered by Republicans that it's reasonable to suspect that Obama may have calculated the political damage he was inflicting on the GOP by choosing him.

How can the Republicans remove this political issue that is all downside for them? Hard to say. If they back down, the topic will disappear from the airwaves, but it will enrage the fevered Tea Party folks. If they keep up the fight, it will be an albatross that hangs around the necks of all Republican senatorial candidates at risk of losing their seats, particularly if Trump is the nominee.

There is one delightful alternative to consider: If the Republicans are swamped by an electoral tsunami in November, the new Democratic president could put Garland on the back burner for a while and select someone a bit less moderate for the Democratic-controlled Senate to consider. Perhaps a constitutional scholar, one with wide experience in both government and law.

So be careful how you handle this, Republicans. You may end up stopping Justice Garland and instead end up with Justice Obama.